Reaffirming Autonomy of Trans and Gender-Diverse Children and Adolescents

In a time where the identity of trans and gender-diverse children is constantly politized and under threat, it is powerful to conceptualize access to gender-affirming care as a human rights matter, unaffected by the political agenda. In the report on ‘Reaffirming Autonomy of Trans and Gender-Diverse Children and Adolescents’ by the organization GATE, the authors highlight exactly how protecting the agency of trans and gender-diverse children is required by the children’s rights framework. Specifically, it demonstrates how states must enable the decision making of trans youth to comply with their human rights obligations. The report explores this idea by setting out the relevant human rights provisions and considering their application in the context of issues related to legal gender recognition, change of gender markers and access to gender-affirming healthcare.

GATE is a non-governmental international advocacy organization with the mission of working towards justice and equality for trans, gender diverse, and intersex (TGDI) people. It seeks to ensure the ‘critical inclusion of trans, gender diverse and intersex movements at all levels of political, legal and socio-economic processes’ by working with strategic partners in providing knowledge and resources. Their strategy is to strengthen TGDI movements with ‘training, capacity building, resource mobilization and political mobilization’. Within this context, GATE conducts widespread research into a variety of issues related to trans and gender-diverse communities. In addition to this report, it has published a large number of other reports and articles. With a wide range of topics, including health in the LGBTQIA+ community, the impact of human rights instruments, reproductive justice, and the state of intersex people in the global south, the research is aimed at academics, policymakers, and the general public. In conducting their research, GATE works with various academics and specialists. The author of this report, Eleonora Lamm, is the head of UNESCO’s Social and Human Sciences Sector. She holds a PhD in law and bioethics and conducts research in the realm of gender identity.

Within the context of GATE’s larger research mission, this report is intended to draw attention to how the autonomy of trans youth is currently compromised in breach of state human rights obligations. It argues that states must provide better access to pathways that promote this autonomy and encourage the child to live authentically. The first part of the report introduces the reader to some of the prominent issues facing trans and gender-diverse youth. It highlights that more people are coming out as trans, meaning more youth are affected by the marginalization experienced. TGDI youth are more likely to ‘to experience several trauma related risk factors associated with poor physical and mental health outcomes, including poverty, homelessness, and violence’. However, as the report notes, mental health problems may be effectively addressed through social and medical interventions.

Subsequently, the report delves into applicable human rights principles within current human rights frameworks that require the protection of the autonomy of trans youth. In particular, it draws on the UN Convention on the Rights of the Child (UNCRC) and the Yogyakarta Principles. It states that although the UNCRC does not explicitly discuss issues related to gender identity, the right to identity, the right to be heard, the right to non-discrimination, and the idea of evolving capacities are closely related. It also notes that guidance by the Committee on the Rights of the Child has evolved to include considerations for ‘[a]dolescents who are lesbian, gay, bisexual, trans and intersex’. The Committee expressly condemns forced procedures for intersex adolescents and compels states to repeal laws that discriminate on sexual orientation, gender identity, and intersex status.

Working with existing human rights provisions, the report continues to evaluate the applicability of specific rights in more detail, concluding that the rights of trans youth are currently being violated. First, it considers that although gender identity is not explicitly mentioned in the right to non-discrimination, it has now been widely recognized that these are protected categories. Second, it examines the concept of evolving capacities in Article 5. The report stresses that, read in conjunction with the right to be heard, the concept must ensure children (especially adolescents) are key participants in decision making. Furthermore, the report considers Article 3, the best interests of the child. Despite its discretionary nature, it is concluded that the best interest standard must uphold the decision-making power of children to support access to procedures and recognition that are shown to improve the quality of life for trans youth.

The report strengthens this position by its reference to the right to recognition of gender identity in the Yogyakarta Principles, and the implication that ‘the personal information in records and on identity documents should correspond to the sexual and gender identity assumed by trans persons’. It highlights that states must establish systems and procedures to receive identity documents, which reflect the self-identified gender identity. This is also explored in the context of the UNCRC right to identity and non-discrimination. The report also examines this idea in relation to the age of consent. It concludes that children should be able to change gender markers, where adolescents should be able to make their own requests while younger children may need the consent of representatives.

Delving deeper into the question of gender-affirming care, the report carefully considers several studies related to the benefits of increased access for trans youth. It states that, in line with human rights standards regarding similar contexts, preventing trans children from undergoing gender-affirming procedures should be classified as cruel and inhuman. The report further links this idea to the UNCRC right to health and the best interests principle. Accordingly, the highest attainable level of health includes access to gender-affirming care as this is in the child’s best interests. As with identity documents, the report contemplates the age of consent. It suggests that a productive solution would be to create legal carve-outs to parental consent, as are currently in place for contraception, the testing of sexually transmitted infections, and mental health care. This important recommendation requires further explanation regarding potential designs and implementation.

Finally, the report draws several notable conclusions. It maintains that states should provide legal access to gender recognition and gender-affirming care. In ensuring this access, states must consider the right to health, the right to identity, and the best interests of the evolving capacities of the child. The report finishes with a list of state obligations, including the duty to (i) educate on sex and gender and create a non-discriminatory environment, (ii) the renunciation of sex requirements on identity documents, (iii) enable access to changing gender markers and gender-affirming health care, (iv) improve future legislation by encouraging inclusive decision making.

There are two features of the report that are particularly noteworthy. First, it makes very clear how the issues facing trans and gender-diverse children fit into current human rights frameworks and rhetoric. This approach is strong because it highlights how states, with current legal arrangements, already have the obligation to create wider acceptance for queerness within childhood and provide access to services that support that queerness. Here, the discussion on the applicability of the right to identity, non-discrimination, right to health, and the best interests of the child principle indicates that the legal groundwork is already in place. Even if the scope of this report did not allow for extensive discussions on all of the relevant issues, it successfully demonstrates how current human rights should logically be interpreted to enable a better approach to transness in childhood.

Second, in addition to the more abstract engagement with rights frameworks, the report concretizes suggestions for improvement. This strategy makes the report even more useful for policymakers and academics in the field. What stands out particularly is the report’s engagement with the age of consent. Both in relation to changing gender markers and accessing gender-affirming health care, it skillfully acknowledges some of the limitations of child autonomy while providing solutions that cater to the child’s evolving capacities. The report recognizes that national protocols in this area can be vastly improved that help increase the agency of trans children, without necessarily undermining the protections in place. For example, when it comes to changing gender markers, the report suggests a successful way of respecting children’s rights would be to allow children to apply to make changes. Depending on the age of the child, this application would be accompanied by the consent of a parent or representative. Additionally, its discussion of trans health care draws a useful parallel to other private forms of adolescent health care, such as reproduction, sexual health, and mental health. It uses these approaches as a suitable model for consent carve-outs. By working with a nuanced understanding of the UNCRC and the liberties awarded to children of different ages, the report’s suggestions become easier to integrate into states’ current approaches.

At the same time, it must be noted that much of the discussion in the report functions as a starting point only. Due to the scope of the work, the analysis of the trans health and gender issues, as well as the implications of specific rights remains brief. Whilst the children’s rights framework does lend itself to increased autonomy for trans and gender-diverse youth, the actual Committee guidance on these issues is perhaps more limited than the report lets on. Nevertheless, the report makes crucial analytical steps in bringing such issues into the scope of the rights framework and changing the political narrative. It reminds the reader that gender identity and presentation of the child is not just a political opinion, but rather a human rights question.

In conclusion, the report shows a high level of engagement with some of the fundamental blocks facing trans and gender-diverse children in policy. By delving into the interplay of various human rights and human rights standards, it exposes how countries are currently falling short of meeting their obligations. Additionally, it provides some valuable suggestions on how to move forward in a way that protects the autonomy and individuality of the child, especially with regards to gender identity and access to gender-affirming health care. Regardless of whether one agrees with the details of these solutions, they present a powerful way forward for trans youth, within the remits of human rights law. In this way, the report is an exciting development in this area of research and serves as a useful springboard for a more detailed analysis of any of these relevant issues.